The Merit Systems Protection Board: An Overview for Federal Employees
The Merit Systems Protection Board, also known as the MSPB or the Board, is an appeals board that enables federal employees to challenge certain decisions made by the federal agencies where they are or were employed. The MSPB is an independent agency of the Executive Branch that is designed to protect federal employees by hearing and deciding appeals by federal employees that involve discipline, removal, lengthy suspensions, performance matters, whistleblower retaliation and a whole host of other issues.
The Firm's attorneys have significant experience in these types of appeals and can assist you if you need legal advice or representation in the MSPB process. From the beginning of the appeals process, initiated by filing what is known as a Form 185, to trial proceedings on your unique issues, we are here to listen to your concerns, and provide you with what we believe to be the best legal approach to representing you before the MSPB.
Most Frequent Types of MSPB Appeals
The MSPB has the ability to review 17 different types of federal employee appeals, the most frequent of which include:
- Removals from the Federal Service or Suspensions of over 14 days in length;
- Removals for Unacceptable Performance (or reductions in grade) under Chapter 43 of the U.S. Code (typically the end result of a performance improvement plan);
- Whistleblower Retaliation cases, also known as Independent Right of Action (IRA) cases (involving violations of the prohibited personnel practices described in 5 U.S.C. 2302(b)(8));
- Illegal Discrimination against Federal Employees Based on Military Status, also known as USSERA (Appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act [VEOA]);
- Final Determinations which affect the rights or interests of current or former federal employees under the Civil Service Retirement System (CSRS) or the Federal Employees' Retirement System (FERS) and 5 U.S.C. 8331 note, Federal Erroneous Retirement Coverage Corrections Act (FERRCA);
- Suitability Disqualifications from Federal Service (5 C.F.R. 731.501);
- Termination of employment during probation or in the first year of a veteran's readjustment appointment related to illegal actions based on partisan political reasons or marital status; or the termination was based on conditions arising before appointment and the employee alleges that the action is procedurally improper; and
- Reductions-in-Force (RIF) actions against Federal Employees and members of the Senior Executive Service (SES).
Our Firm works to assist federal employees and supervisors with MSPB appeals regarding decisions made by federal agencies that impact their rights.
The MSPB Appeals Process
It is important to understand that the MSPB appeals process, which begins with the filing of a Form 185, can be very similar to civil litigation, at least in the sense of the procedures used. The major difference between MSPB appeals and traditional civil litigation is the fact that there are significant timing differences in the MSPB appeals area, whereby most appeals are completed within 120 days.
The Start of an MSPB Appeal
In most types of cases, an appeal to the MSPB must be filed within 30 calendar days of the effective date of the agency's action, if any, or within 30 calendar days after the date of receipt of the agency's decision, whichever is later. Once a federal employee's appeal is filed, an MSPB Administrative Judge will be assigned to hear the case and an Acknowledgement Order will be issued, providing the general ground rules for the MSPB appeals process in the individual's case.
The Discovery Phase of an MSPB Case
The discovery phase of an MSPB case can be crucial to the successful resolution of a federal employee's appeal to the MSPB. Discovery takes place immediately after the filing of a case with the MSPB and must be generally initiated 25 days following the initial order of the MSPB to produce the agency's record of events in the matter. In the discovery process, the taking of depositions is extremely important. This is where agency officials relevant to your case, and potentially other individuals can be deposed in an effort to disprove allegations made against federal employees or to support an appeal brought to the Board.
In addition, critical evidence in support of your appeal can be gained through traditional discovery techniques at the MSPB, such as the use of interrogatories, production of documents requests and requests for admission during the discovery period.
Potential Settlement Options for Federal Employees
Settlement of MSPB cases is often possible, and clients sometimes find that it is preferable to negotiate a settlement instead of taking their case to a full hearing. The Firm can help clients evaluate the potential of their cases for settlement. The Firm seeks and provides settlement offers for clients, but at the same time prepares for the hearing stage in each individual's case should an acceptable offer not be provided.
The Hearing Before the MSPB Administrative Judge
If the client decides that settlement is not an option in his or her appeal, then the next stage of the MSPB appeals process involves the hearing process. At this stage, the parties will first submit their pre-hearing conference submissions, along with their evidence in support of their appeal and prepare for the hearing stage before the Administrative Judge.
How We Can Help
Berry & Berry, PLLC, attorneys handle federal employee MSPB appeals involving federal employee removals, suspensions, performance issues (PIP appeals), reduction in force, Whistleblower/IRA claims (i.e., claims of retaliation for whistleblowing, USERRA, VEOA, OPM appeals and other matters for Board review.
Our attorneys can advise and represent federal employees as they consider or anticipate having to undergo the MSPB appeals process. Please contact our Firm at 703-668-0070 or through our contact page to schedule a consultation with one of our attorneys to discuss the next steps in your potential appeal to the MSPB.
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